P suffered torn cartilage in her knee due to an automobile accident caused by D's negligence.
P did not undergo surgery to have it repaired and did not indicate at trial that she would have surgery.
D introduced expert testimony that surgery would allow P to recover completely.
Jury awarded $7500 which included damages for permanent injury.
Procedural History:
Trial court found for P, awarded $7500.
OR Supreme Court affirmed.
Issues:
Is a P required to mitigate damages by submitting to the treatment of a physician or having surgery?
Holding/Rule:
A P in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician when a reasonable person would do so under the same circumstances.
Reasoning:
Factors to be considered to measure if a reasonable person would have mitigated permanent injury…
The risk involved
Pre probability of success
The expenditure of money or effort involved.
The pain involved.
D presented no cases in which a P had to submit to surgery to remove damaged cartilage in order to prevent permanent injury.
